Supreme Court New South Wales

• Medium Neutral Citation: R v Li [2012] NSWSC 477
• Hearing dates: 5 April 2012, 13 April 2012 and 3 May 2012
• Decision date: 11 May 2012
• Jurisdiction: Common Law - Criminal
• Before: Adamson J

Decision

Obtaining money by deception:

Sentenced to a fixed term of imprisonment for 1 year. The sentence is to date from 26 September 2009 and expire on 25 September 2010.

Aggravated robbery:

Sentenced to a fixed term of imprisonment for 6 years. The sentence is to date from 26 March 2010 and expire on 25 March 2016.

Manslaughter:

Sentenced to a term of imprisonment comprising a non-parole period of 7 years and a balance of the term of the sentence of 3.5 years. The sentence is to date from 26 March 2011. The offender will be eligible for release on parole upon the expiration of the non-parole period on 25 March 2018. The total term will expire on 25 September 2021.

• Catchwords: CRIME - sentence - manslaughter - manslaughter by unlawful dangerous act
• Legislation Cited: - Crimes Act 1900; - Crimes (Sentencing Procedure) Act 1999; - Criminal Case Conferencing Trial Act 2008; - Criminal Procedure Act 1986; - Evidence Act 1995
• Cases Cited: - Markarian v The Queen [2005] HCA 25; 228 CLR 357; - R v Ian Styman; R v Taber [2004] NSWCCA 245; - R v Lavender [2005] HCA 37, 222 CLR 67; - R v Nguyen [2004] NSWCCA 438; - R v Olbrich [1999] HCA 54; 199 CLR 270; - R v Stafrace (1997) 96 A Crim R 452; - R v Taber and Styman [2005] NSWSC 1292; - R v Taber, Styman and Styman [2003] NSWSC 93; - Wilson v R [1992] HCA 31; 174 CLR 313
• Category: Sentence
• Parties: Regina; Yutian Li
• Representation: Counsel: H Baker (Crown); G Craddock SC (Offender); Solicitors: Solicitor for Public Prosecutions; Legal Aid Commission of NSW
• File Number(s): 2009/214742
• Publication restriction: Non-publication of anything that would identify the witness known as AQ

Judgment

1 On 3 June 2011 the offender, Yutian Li, was arraigned on an indictment dated 4 May 2011 charging him with the murder of Ian Craigie at Glebe between 19 and 25 September 2009 (s 18(1)(a) of the Crimes Act 1900), aggravated robbery with wounding on 20 September 2009 (s 96 of the Crimes Act) and 8 counts of obtaining money by deception between 20 September and 26 September 2009 (s 178BA of the Crimes Act). The offender pleaded guilty to the 8 counts of obtaining money by deception on 3 June 2011.

2 On 5 September 2011, the date fixed for trial, a further indictment was presented which charged the offender with murder (s 18(1)(a) of the Crimes Act) and aggravated robbery, the circumstances of the aggravation being that he deprived the deceased of his liberty (s 95 of the Crimes Act). On that day, the offender entered a plea of guilty to the manslaughter of Mr Craigie, which was accepted in full discharge of the indictment. I am informed that the basis on which the plea was accepted was one of manslaughter by unlawful and dangerous act. It is upon that basis that the offender will be sentenced. The offender also pleaded guilty to the charge of aggravated robbery.

The evidence in the Crown case on sentence

3 The Crown tendered a statement of facts with which the offender confirmed his agreement in accordance with s 191 of the Evidence Act 1995.

4 It also tendered photographs taken of the deceased when he was found dead, of the deceased's unit and also photographs of the offender which were taken from CCTV footage at various railway stations at various times on Sunday 20 September and Saturday 26 September 2009. There were also photographs of the packing tape which was found in the offender's unit and of his backpack and its contents. The Crown tendered bank statements of the deceased which established matters set out in the statement of agreed facts.

5 The following narrative is established by the agreed facts.

Background

6 At the time of these offences, between 19 and 27 September 2009, the offender (then aged 22) was living in Australia on a student visa from China. He was studying hospitality at an educational institute in Cleveland Street, Redfern and lived in a unit at Hurstville with his girlfriend.

7 The deceased victim, Ian Craigie (then aged 63), lived alone at his unit in Glebe.

Sunday 20 September 2009

8 At around 11.30am on Sunday 20 September 2009 the deceased and a friend, Walter Cook, spoke on their home telephone landlines. The deceased and Mr Cook agreed to meet later that afternoon, as they did regularly.

9 Mr Cook later informed police that the deceased was openly homosexual and would hire young Asian male prostitutes and take them back to his unit for sex. Mr Cook was aware that one of these male prostitutes went by the name "Terry". This was the offender.

10 While talking on the phone the deceased told Mr Cook that he would be meeting with "Terry" early so that he could get to Mr Cook's house for their usual get together. During this conversation the deceased received a call at 11.40 am on his mobile phone. He told Mr Cook that he believed "Terry" was ringing and he had to go.

11 Mr Cook received no further contact from the deceased. When the deceased failed to meet him that afternoon, Mr Cook became concerned. He called the deceased's phone number but there was no answer.

Tuesday 22 September 2009

12 When the deceased did not turn up for work as a teacher at Saint Ignatius College, Riverview on Tuesday 22 September 2009, his colleagues became concerned. The deceased had a good reputation for punctuality and would always advise the school if he was to miss a class. Attempts to contact the deceased by phone were unsuccessful.

Wednesday 23 September 2009

13 The deceased failed to turn up to work again on Wednesday 23 September 2009. Work colleagues became more concerned. When further attempts to contact the deceased by phone were unsuccessful they contacted Glebe police station and reported their concerns.

14 At about 4.00 pm police went to the deceased's unit block. They knocked on the door but there was no response. The unit was otherwise inaccessible; it was on the third floor and had no balcony. The deceased's car was not parked in his designated car space. Police listed the deceased as a missing person that night and continued their enquiries.

Thursday 24 September 2009

15 On Thursday 24 September 2009 further police enquiries revealed that the deceased's ANZ Bank ATM card had been used on each day since 20 September. $1,000 was withdrawn on each day. This was the card limit and seen as unusual activity on the account. Police returned to the deceased's unit. They again knocked on the door without a response and spoke to neighbours. At 3.10 pm police rescue officers used a ladder to gain access to the unit through the laundry window.

The crime scene

16 Police found the deceased lying on his back on the floor of his bedroom. He had clear packing tape wrapped around his wrists and hands, across his chest, his thighs, his ankles and his mouth (the tape was around the back of his head but not covering his nose). The deceased also had a thin drawstring wrapped loosely around his neck. He was clothed, wearing a red white and blue flannelette button up shirt, a navy t-shirt, navy underwear, khaki corduroy trousers, white joggers, white socks and a gold wrist watch. A small fan heater was on. The bedroom was very warm and the deceased's body was badly decomposed.

17 The deceased's spectacles were found lying in the hall to the bedroom. There were signs of a disturbance nearby: a rug was crumpled and a pot plant on a stand had been knocked over and broken. Bloodstains were observed on the lower part of the bedroom door, bedroom carpeting and rug and on the doona of the bed.

18 During a search of the unit, police found a piece of paper next to the telephone on which was handwritten: "Terry [mobile phone number] T [mobile phone number]." Later enquiries established that these two numbers belonged to the deceased and the offender. The deceased's mobile phone was not located in the unit. Other property that was missing included the deceased's credit cards, an ANZ Bank card and drivers licence. The deceased's car keys and car were also missing.

19 Police canvassed the area, speaking to neighbours and nearby residents. Police also searched the surrounding area.

20 Whilst searching the front garden on the immediate right of a neighbouring unit block police found a broken plastic packaging of a roll of masking tape underneath a bush. I was informed by the Crown at the hearing on sentence that this packaging did not match the tape used by the offender to bind the deceased. Accordingly this fact is irrelevant and I disregard it.

Post mortem examination

21 The deceased's body was badly decomposed when it was found on 24 September 2009. Dr Rebecca Irvine, a senior staff pathologist at the Department of Forensic Medicine arrived at the scene at about 10.00 pm and arrangements were made for the deceased body to be removed. Dr Irvine conducted a post mortem the following day and prepared a report.

22 Dr Irvine was not able to precisely identify the time of death due to the circumstances in which the body was found, but was able to conclude that the deceased died sometime between 20 and 24 September 2009. This was based on information provided to her by police.

23 Dr Irvine was not able to determine the cause of death. The internal examination of the deceased was limited by the decomposition of the body. However, no "gross significant natural disease" was found and an examination of the heart revealed nothing remarkable.

24 Dr Irvine was of the opinion that possible mechanisms of unnatural death by the totality of circumstances and findings included hyperthermia and dehydration/electrolyte disturbance. Dr Irvine was also of the view that most importantly under the circumstances, asphyxia was a possible cause of death. Moreover, multiple forms of possible asphyxia are possible, including but not limited to, suffocation, strangulation, positional asphyxia, mechanical asphyxia and restraint asphyxia. In addition Dr Irvine was of the opinion that any cause of unconsciousness may have rendered the deceased unable to protect his airway.

ATM usage

25 During the course of the investigation police established that the deceased held three bank accounts (a cheque account, a fund management account and an investment account) and a Visa credit card with the ANZ Bank. The deceased also held two American Express credit cards. The offender robbed the deceased of these cards on 20 September 2009.

26 Between 20 September 2009 and 26 September 2009 the offender used the deceased's ANZ Bank card on the following 15 occasions:

No.	Date	Time	Account / Activity / Location
1.	20.09.09	16:08	ANZ Bank access card used to obtain a balance of the deceased cheque account at a Commonwealth Bank AIM at 553 Elizabeth Street, Strawberry Hills.
2.		16:08	ANZ Bank access card used to withdraw $500 from the deceased's cheque account at a Commonwealth Bank ATM at 553 Elizabeth Street, Strawberry Hills. [count 3]
3.		16:09	ANZ Bank access card used to withdraw $500 from, the deceased's cheque account at a Commonwealth Bank ATM at 553 Elizabeth Street, Strawberry Hills. [count 4]
4.		16:10	ANZ Bank access card used to attempt to withdraw $500 from the deceased's cheque account at a Commonwealth Bank ATM at 553 Elizabeth Street, Strawberry Hills but was unsuccessful.
5.		16:10	ANZ Bank access card used to obtain an account balance of the deceased's fund management account at a Commonwealth Bank ATM at 553 Elizabeth Street, Strawberry Hills.
6.	21.09.09	12:53	ANZ Bank access card used to withdraw $1000 from the deceased's cheque account at an ANZ Bank ATM at Town Hall Square, Sydney. [count 5]
7.		12:54	ANZ Bank access card used to obtain a balance of the deceased's Cheque account at an ANZ Bank ATM at Town Hall Square, Sydney
8.		12:54	ANZ Bank access card used to attempt to withdraw $200 at an ANZ Bank ATM at Town Hall Square, Sydney
9.		12:55	ANZ Bank access card used to obtain a balance for the deceased's fund management account at an ANZ ATM at Town Hall Square, Sydney.
10.		12:56	ANZ Bank access card was used to attempt to withdraw S1000 from the deceased's account at ANZ ATM Town Hall Square, Sydney.
11.	22.09.09	00:00	ANZ Bank access card was used to withdraw $1000 from the deceased's cheque account at a Westpac ATM on Elizabeth Street, Sydney. [count 6]
12.	23.09.09	09:01	ANZ Bank access card used to withdraw $1000 from the deceased's fund management account at a Commonwealth Bank ATM at 553 Elizabeth Street, Strawberry Hills. [count 7]
13.	24.09.09	12:59	ANZ Bank access card used to withdraw $1000 from the deceased's fund management account at a Commonwealth Bank ATM at 553 Elizabeth Street, Strawberry Hills. [count 8]
14.	25.09.09	11:51	ANZ Bank access card used to withdraw $1000 from the deceased's fund management account at an ANZ Bank ATM at Strathfield. [count 9]
15.	26.09.09	09:55	ANZ Bank access card used to withdraw $1000 from the deceased's fund management account at an ANZ Bank ATM at Hurstville. [count 10]

27 Including bank fees, a total of $7,014 was taken from the deceased's accounts.

CCTV footage

28 During the investigation police were able to obtain CCTV footage showing the offender using the ANZ Bank ATM at Town Hall Square, Kent Street on 21 September 2009 and the ANZ ATM at Strathfield on 25 September 2009.

Saturday 26 September: the arrest, search of the offender's premises and police interview

29 On 26 September 2009 police were informed that at 9.55 am that day the deceased's ANZ Bank card was used to withdraw $1,000 from the ANZ ATM in Cross Street, Hurstville. CCTV footage later obtained by police showed that this was the offender. Police went to the Hurstville area with images taken from the CCTV footage of the 21 and 25 September 2009. Shortly after 2.00 pm the offender was seen walking in a nearby street with his girlfriend. He was arrested, searched, taken into custody and interviewed by the police.

30 Police searched the offender's unit on 26 September 2009. During the search police found the clothing that the offender was seen wearing in the CCTV footage. Police also found $5,500 in cash (all in $50 notes) and a mobile phone that police were later able to establish was used to call the deceased on 20 September 2009 at 11.40 am, 11.44 am and 1.39 pm. The first two calls were made from the Hurstville CBD while the third call was made from Strawberry Hills. The subscriber of this phone was listed as a "John Jacky" of Blacktown. Whilst searching the kitchen in the unit police also found a roll of clear packing tape on top of the fridge.

31 During the police interview the offender stated that he had previously worked at a massage parlour at Granville where he performed 'Chinese' massage. He denied ever meeting a customer from the massage parlour outside of work or attending any customer's residence outside of Granville. He denied having any Caucasian friends or friends of about 50 years of age. The offender denied any knowledge of the deceased or his residential address.

32 When asked what his movements were on Sunday 20 September 2009 he stated he was at home with his girlfriend. He stated he accompanied her to Hurstville railway station between 10.00 and 11.00 am as she had to go to work and on the way home he bought some bread and then stayed in his room using the Internet and fell asleep. He said his other flatmate was home and he spoke to her both in the morning and the afternoon. He stated he got up from his sleep about 4.00 - 5.00 pm in the afternoon.

33 After denying he knew a person by the name of Ian Craigie the offender was shown a photograph of the deceased. The offender identified this person as a male he knew as 'John' who he met whilst working at a massage parlour in Granville. He stated he last saw 'John' a couple of months ago when they met at a coffee shop near Central. He identified 'John' as a regular customer who he met when he was working at the massage parlour last year.

34 The offender stated that the coffee shop was close to Harold Park. He said that he was picked up by the deceased near Central railway station in front of the University of Technology and driven there. The offender stated that 'John' had offered to give him English lessons for $50 per hour. He denied the deceased ever gave him his address and insisted the deceased had only picked him up once, but admitted to calling the deceased to practise his English on the phone.

35 The offender denied that the deceased called him 'Terry'. In relation to the piece of paper with the name 'Terry' and the two mobile phone numbers, the offender confirmed that one was a number he used to use.

36 In relation to the ATM withdrawal on 25 September 2009 at Strathfield, the offender was shown a photograph taken from CCTV footage at Redfern railway station. The offender identified himself in the photograph as wearing a red cap, black shirt and dark jeans and carrying a bag.

37 The offender was captured on CCTV footage boarding a train heading towards Strathfield. On arrival at Strathfield the offender got off the train wearing different clothing: a dark jumper, a black cap and dark sunglasses. The offender was still carrying the same bag. The offender was shown the footage of himself at the ATM at Strathfield at about 11.55 am but denied it was him and insisted he went to Burwood that day.

38 The offender was asked about the $5,500 in cash found during the search of his unit. The offender stated that his aunt had given him $2,000 and the balance was left over from work and money he had saved.

39 The offender denied being picked up by the deceased on Sunday 20 September 2009. He denied being in a sexual relationship with him or ever having sex with him or ever having been to his unit.

Second search of the offender's unit

40 Police conducted a second search of the offender's unit on 13 October 2009. During the search police found a black backpack hidden in a rubbish bin storage box in a common area of the offender's unit block. Inside the backpack was a black baseball cap (with the offender's DNA profile on the inside) a grey hooded jacket (with an area that tested positive for blood and had the deceased's DNA profile on it) and a blue plastic bag (with the offender's fingerprint on the inside). Inside the blue plastic bag were the deceased's drivers licence, American Express cards, ANZ Bank ATM card, Visa card and car keys.

Further investigation

41 Further investigation by police discovered:

(1) The deceased's car found abandoned about 1.5 kilometres from the offender's unit. The offender's fingerprint was on the inside of the front passenger window;

(2) The offender's fingerprints on the inside (sticky side) of the clear tape binding the thighs of the deceased;

(3) The offender's palm print on another piece of the tape stuck to the doona on the bed in the deceased's bedroom;

(4) CCTV footage from various railway stations showing the offender's movements into the city between 20 and 26 September 2009. Footage captured on 20 September 2009 showed the offender at Central railway station at 1.00pm. The offender's movements were also confirmed using the records of the use of a weekly train ticket that was found during the first search of the offender's unit; and

(5) Mobile phone records showing earlier contact between the offender and the deceased on 2 May 2009, 29 June 2009,1 July 2009, 2 July 2009, 19 July 2009, 28 July 2009, 15 August 2009, 20 August 2009, 5 September 2009, 6 September 2009 and 18 September 2009.

Basis for manslaughter plea

42 The offender pleaded guilty to the manslaughter of the deceased in addition to the other charges on the indictment of aggravated robbery and obtaining money by deception. The plea of guilty was entered on the basis of manslaughter by an unlawful and dangerous act. It was accepted by the offender that the unlawful and dangerous act committed by him was to unlawfully bind, gag and abandon the deceased in circumstances where the deceased could not move freely nor be heard if he shouted. Further it was accepted by the offender that as a result of the manner in which the deceased was bound and gagged and the difficulty that the deceased had in moving about that by reason of some action taken by the deceased in attempting to move about and to free himself, the deceased became incapable of breathing and died by asphyxiation.

Time in custody and timing of the plea

43 The offender was arrested on 26 September 2009. He has remained in custody since this date.

44 On 13 October 2010 a case conference was held. At this conference the offender, by his counsel Ms Yehia SC, offered to plead guilty to manslaughter on the basis of an unlawful and dangerous act. That offer, which was not accepted by the Crown, pre-dated the committal hearing. As referred to above, the Crown ultimately accepted the plea of manslaughter on the basis of unlawful and dangerous act on 5 September 2011.

45 This concludes the narrative based on the agreed facts.

Further evidence adduced by the Crown on sentence

46 At the request of the offender, the Crown also tendered statements from Peter Bollard, Gary Lysaght and Walter Cook, each of whom was a friend of the deceased.

47 Their evidence established that the deceased taught Classics at Saint Ignatius College, Riverview, where he had worked part-time for the previous five or six years. Prior to this, the deceased had been employed as a senior legal officer for the Director of Public Prosecutions. His parents had died some time previously and his only immediate family was his sister who was, and remains, institutionalised in a Psychiatric Ward at a Sydney hospital.

48 This evidence also proved that the deceased was, at least among his inner circle of friends, open about hiring Asian male prostitutes of a particular age for sex.

49 Mr Lysaght described the deceased as a wealthy man who had inherited a substantial amount of money and property. Mr Cook said that the deceased was careful with his money and did not waste money on material goods, although he was not afraid of displaying the fact that he carried a substantial amount of cash.

50 The Crown also relied on the evidence of AQ who gave oral evidence and was cross-examined. AQ had met the deceased in the same way as the offender had: at a male brothel in Granville. AQ worked at the brothel for a couple of months. At the time of the sentence hearing AQ was about 33 years old. According to Mr Cook, when AQ was younger, the deceased would pay AQ for sex, first at the brothel and then, after AQ had stopped working there, at the deceased's unit.

51 After some time, the relationship between the deceased and AQ ceased to be sexual and developed into what AQ described as a "father and son" relationship. AQ would often go to the deceased's unit on Saturday night and have dinner with him. He would tidy up the deceased's flat, and in particular the kitchen and bathroom areas, and also help the deceased with anything that had to be done on the Internet as the deceased was not particularly comfortable with technology. AQ set up Internet banking for the deceased and helped him use it. Mr Cook believed that the deceased also paid AQ for these services.

52 AQ gave evidence that he did not see any packing tape in the deceased's flat at any time and in particular he did not see any tape there when he was there on 19 September 2009, the evening before the deceased was bound and gagged by the offender. He was cross-examined on this matter to the effect that the deceased's flat was generally messy and there might have been tape there which he did not notice when he was tidying and cleaning it. AQ agreed that he could not be sure that there was no packing tape there. AQ said that he focussed on the kitchen and bathroom because the deceased did not want him to tidy up things, principally books on the tables in the rest of the unit in case he could not find things that had been rearranged.

53 The Crown also tendered a certificate pursuant to s 35A of the Crimes (Sentencing Procedure) Act 1999 to the effect that the statement of agreed facts was settled in accordance with the applicable Prosecutor's Guidelines. There was no consultation with the deceased's family since his only immediate family member, his sister, has a psychiatric condition which is such that it would be detrimental to her mental health for her to be spoken to about these proceedings.

The offender's evidence

54 The offender gave oral evidence with the assistance of an interpreter at the sentence hearing and was extensively cross-examined.

55 The offender came to Australia to study hospitality management at Carrick College, a private TAFE college. He was also working at a Chinese restaurant in Auburn. He gave evidence that his skin was allergic to garlic and shallots which caused him to stop working at the restaurant and look for another job.

56 He found a position in a male brothel in Granville for which he was paid $80 per hour. In March 2008, he met the deceased, who came to the brothel every fortnight for sex. The offender became the deceased's preferred sexual partner at the brothel. The offender told the deceased his name was "Terry" and the deceased, according to the offender, told him that his name was "John". There were four or five other males who worked at the brothel while the offender worked there.

57 The offender gave evidence that at some time in 2008, he decided to leave the brothel because he had a girlfriend and wanted to "have a normal life". He told the deceased of his intention and they exchanged phone numbers. The deceased rang the offender a fortnight later and they arranged to have coffee. While they were having coffee at a café in Glebe, the deceased proposed to the offender that he come to his unit for sex, but the offender refused. The deceased offered to teach English to the offender, who agreed to come to the unit for that purpose.

58 According to the offender, in December 2008, the deceased invited him to his unit for an English lesson. At the unit, the deceased offered him orange juice which made him drowsy and then unconsciousness. When he awoke he discovered that the deceased was taking photos of his naked body. According to the offender, the deceased threatened to send the photographs to magazines and newspapers and to report him to Immigration if he refused to have sex with him. The deceased then raped the offender.

59 The offender agreed in cross-examination that at no time prior to 20 September 2009 when he was at the deceased's unit did he attempt to delete the three photographs from the deceased's mobile phone. The offender said that he feared that the deceased had downloaded the photographs to his computer, although he admitted that the deceased had never told him that he had done so.

60 According to the offender, from that time on, he visited the deceased every fortnight and would have sex with him. He would catch the train to Central and the deceased would pick him up and drive him back to the unit where he would park in a designated car space outside his unit. The offender gave evidence that he had no interest in sex and the deceased "forced" him to take Viagra. The offender said that at no time did the deceased offer to pay him for sex at his unit.

61 The offender admitted in cross-examination that, notwithstanding his evidence that he had stopped working at the brothel in November 2008, he had returned there in 2009 for about a fortnight. The offender gave no evidence as to how he supported himself in the period when he was no longer working at either the brothel or the restaurant.

62 According to the offender, on Sunday 20 September 2009 he told the deceased that he was no longer prepared to come to the deceased's unit because he was now living with his girlfriend. The deceased then suggested that he come and live with him, and offered money, accommodation and a car. The deceased then showed him his bankcards and told him the PIN, which the offender thought was fake. The offender did not note it down.

63 On that occasion the deceased made no reference to the photographs he had taken of the offender and made no threat to disclose the photographs either to the press or to the authorities. According to the offender he told the deceased that all he wanted was for the photographs of his naked body to be destroyed. The deceased then suggested that they have sex and talk about the future later.

64 According to the offender, there was then a tussle between them as a result of which the deceased, according to the offender, picked up a roll of tape which happened to be on a nearby table. The offender said he believed that the deceased wanted to tie him up with the tape. In order to rebuff him, the offender pushed the deceased and they both fell to the ground. At first the offender thought that the deceased had passed out. The offender then grabbed the tape and used the tape to bind the deceased's hands. The offender said he picked up a knife which happened to be nearby. The deceased then swore at the offender which made him frightened so he bound the deceased's mouth as well. According to the offender, the deceased was still able to breathe and speak notwithstanding the tape.

65 According to the offender he simply wanted to protect himself and did not intend to steal from the deceased.

66 The offender then reiterated that all he wanted was the photographs. The deceased threatened to call the police to report an assault. There was then another tussle, which the offender described in his evidence in the following terms:

"I kept struggling on the ground and one of my hands touched a rope which was on the floor so I then used the rope to strangle his neck. He kept struggling as well and then I felt that I didn't have the strength to hold the rope any more so I then used my hand to punch his head and pushed him away from my body, and by then I was still very scared and frightened so I picked up the roll of tape from the ground and tie his hands up again, and then I picked up the small knife which was on the floor and then quickly ran out.

By that time he was still talking to me something continuously but I cannot recall what he said. Then when I was trying to get out I found out that the door was locked from the inside so I then returned to look for his keys... I found the keys in his bumbag. I noticed the mobile phone next to him and then I thought of my photos, and then I put the mobile phone and also the roll of tape both inside the bumbag and then I took the bag away with me. When I walked out I found that I was very tired all over my body and so I just sat on the metal - on the grass in front of his unit, under the unit, under stairs. Then I took out his mobile phone and deleted my photos.

I later found out that his wallet was also in the bag. I had a lot of grievances for what had happened for that period because I didn't get anything for what had happened and I just recalled that he did tell me the password to his bankcard so I just took the bankcard. I also noticed the car keys; the car key was also in the bag. I then took the car key and the bankcard with me away and left all other things on the grass. Then I drove his car home."

67 When asked in cross-examination why he stole the deceased's car, the offender said:

"...the reason why I drove his car was because at the time I felt very weak. I didn't have any strength so I just drove his car home but it was on my way home I saw the ATM machine on the roadside and it was just impromptu, like one thinking suddenly slipped into my mind that I wanted to take some money out of the card."

68 The offender volunteered in cross-examination that he was waiting for the deceased to telephone him because he "was concerned about how he was doing". When asked whether he called Triple-0, he said that his English was very poor. When it was put to him that all he needed to say had he called Triple-0 was the deceased's address he said:

"I didn't think that much at the time and I thought if Ian Craigie was okay he could call the ambulance himself."

69 The offender accepted that he knew the deceased's address and that, in any event, it was recorded on the deceased's licence, which the offender had taken with the bankcards.

70 In re-examination he said that he was not aware of the Triple-0 system and had never used it.

71 The offender maintained in evidence that he was concerned about the deceased as the days passed since the binding and gagging. He said:

"I also wanted to learn how he was doing but I didn't know how to get the information and plus on that week I remember I was very busy. I was attending classes every day from Monday to Friday."

72 When it was put to the offender that he was not too busy to withdraw the maximum allowable amount from the deceased's bank accounts, the offender said:

"I admit that I was a little bit greedy at the time about money so that is why I feel very regretful for what I have done."

73 The offender denied that he accepted that what he did that day led to the deceased's death. The following further exchange is illuminating:

"Q. And do you accept he couldn't escape or get help?

A. INTERPRETER: No, I don't accept that. Because I believe it will be very simple for him to... release his hand and his feet and call for help."

74 However when the offender was asked by his counsel whether he felt responsible for the death, he said that he did and wanted to apologise to the deceased's friends and his family, especially his sister, whom the deceased had told him lived in a mental hospital.

75 He said that he was taking medication in prison and expected that once his term had been served, he would be deported to China where he would like to do another course, find a job and look after his parents. He said:

"I want to have a normal life in China, stay away troubles."

Other evidence relied upon by the offender concerning the offences

76 The offender tendered a report of Dr Westmore dated 10 June 2010 of a consultation on the previous day at Long Bay Gaol, at which an interpreter was present. It was tendered to rebut the allegation of recent invention made by the Crown.

77 The offender also tendered transcript of evidence given by Dr Irvine who performed an autopsy on the deceased. Dr Irvine deposed to the bloating that can occur post mortem. Her evidence was relevant to the question of the way in which the offender gagged the deceased and how bloating could give rise to an impression that the gagging was tighter and more restrictive than it actually was. As referred to above, the Crown tendered photographs of the deceased's body. The photographs of his face as gagged by packing tape must be seen in light of Dr Irvine's evidence.

Factual disputes to be resolved

78 In the instant case, although there is, as set out above, agreement about the physical acts performed and the financial transactions, there are various factual disputes, the resolution of which has a substantial impact on the objective seriousness of the offender's admitted conduct. As sentencing judge, I may not take facts into account in a way that is adverse to the interests of the offender unless the facts have been established beyond reasonable doubt, but if there are circumstances which I propose to take into account in favour of the offender it is sufficient that they be proved on the balance of probabilities: R v Olbrich [1999] HCA 54; 199 CLR 270 at [27], per Gleeson CJ, Gaudron, Hayne and Callinan JJ.

79 The most significant factual issue is the offender's motive for his actions.

The offender's credibility

80 The offender's version is difficult to accept either as a matter of objective probability, internal consistency or by reference to other evidence. For the reasons which follow I do not accept the offender's evidence, except where it constitutes a statement against interest, is corroborated or is in accordance with the statement of agreed facts.

81 When first apprehended, the offender lied to the police about various matters including his relationship with the deceased and his visits to the deceased's unit. I accept that there may be reasons why someone does not at first tell the truth to the police which do not amount to a consciousness of guilt and which, properly analysed, do not adversely affect the person's credibility. However, I find that the offender lied to police because at the time he genuinely believed he could get away with his crime and may well have thought that his identity could not be established.

82 In his evidence at the sentence hearing the offender took every opportunity to portray himself as the victim and a hostage to fortune rather than a willing actor and perpetrator. He sought to justify his working in the brothel by deposing to an allergy to garlic and shallots at the restaurant where he had been employed. He deposed that he went to the deceased's unit to learn English and was drugged by the deceased and found himself naked on the bed.

83 To accept the offender's account of events, I would have to be satisfied that he continued to meet and have sex with the deceased without remuneration because he had been blackmailed. The offender said that he initiated phone contact with the deceased because he was scared that his girlfriend would find out that he was having sex with the deceased. He said that he only took the deceased's car because he was so worn out from the struggle that he did not feel able to catch public transport home. I do not accept any of these explanations.

84 The offender would have me believe that several matters were entirely fortuitous and instantaneous, including:

(1) That his hand just happened to touch the rope on the floor of the unit during the tussle;

(2) That the unit was locked from the inside which meant that he had to take the deceased's keys to get out of the unit;

(3) That he happened to be passing an ATM on his way home when the thought occurred to him to use the deceased's bank cards and that he remembered the PIN that the deceased had voluntarily divulged to him even though at the time of its disclosure the offender had assumed it to be fake.

85 I do not accept that any of these matters was fortuitous. In my view the offender planned, before his arrival at the deceased's unit, to disable the deceased, steal his cards and his car and use the cards to make withdrawals from his bank accounts.

86 Although the offender had been prepared to work in a brothel, and the deceased paid him for sex there, the offender would have me believe that he was not prepared to accept money for sex at the deceased's unit and that the deceased was not prepared to pay him for sex there. I do not accept this evidence. The allegation that the deceased was prepared to blackmail the offender to live with him and provide sexual services to him is inconsistent with the deceased's way of life as described in the evidence from the deceased's friends. I infer that the deceased regarded sex as a commodity that could be bought or sold in the course of a harmonious and consensual commercial exchange. I find that the deceased's financial means were more than adequate to pay prostitutes to satisfy his sexual demands and that he was prepared to spend his money in that way.

87 I do not accept that the deceased at any time attempted to blackmail the offender. The deceased knew only the mobile phone number of the offender and possibly the suburb in which he lived when he lived in Strathfield. I accept that the deceased knew that the offender was studying, but I do not accept that he knew at which institution he was enrolled. He did not know the offender's name. The account of the mobile phone number that the offender used was not in the offender's name. He knew him only by the name "Terry".

88 In my view, it beggars belief that the deceased, if he were truly in a position to blackmail the offender, would nonetheless willingly give him the PIN of his ATM card. I do not accept the offender's reason that he still remembered the PIN when he happened to be driving past an ATM on his way home, particularly in circumstances where on the offender's version, he did not believe at the time it was divulged, that it was truly the deceased's PIN.

89 The methodical way in which the offender bound and gagged the deceased is also, in my view, inconsistent with the offender's being disturbed, agitated or fearful. Rather it suggests a degree of premeditation, planning and sangfroid. It is also testament to the relatively greater strength of the offender, who was, at the time of the offence, over forty years younger than the deceased.

90 I consider that the speed with which the offender accessed the deceased's bank accounts and extracted the maximum daily limit to be inconsistent either with his being agitated or relieved that the immediate threat to his immigration status had been removed. Rather it bespeaks a calculated implementation of a pre-conceived plan.

91 The version of events which the offender gave in court at the sentence hearing was in parts at odds with the version he gave to Dr Nielssen, a psychiatrist who assessed him on 16 September 2011 at the request of his solicitors, for the purposes of this sentence hearing. At that time, the offender had been in custody for almost two years. Dr Nielssen saw the offender on a videolink rather than in person.

92 The offender tendered a report of Dr Westmore following a consultation which had taken place on 9 June 2010, at which an interpreter had been present. There are various further matters where the history given by the offender to Dr Westmore accorded with his evidence before me, and was at odds with that given to Dr Nielssen.

93 The Crown submitted that the disparities between the histories the offender gave to Dr Nielssen and the evidence he gave before me reflected adversely on the offender's credit. The offender's counsel submitted that the contents of Dr Westmore's report were sufficient to rebut any allegation of recent invention.

94 The disparities relied upon are not, in themselves, sufficient to persuade me that I ought not accept the offender's evidence. Nor are the consistencies between his version to Dr Westmore and his evidence sufficient to persuade me to accept him. The reasons I do not accept the offender's evidence are set out above and do not depend on a comparison between the two reports and the offender's evidence.

The factual findings for sentencing purposes

95 I accept the Crown's submission that the offender bound and gagged the deceased for financial gain and that his conduct in so doing was planned and calculated.

96 I find that the deceased and the offender met fortnightly from November 2008 until 20 September 2009 for the purpose of having sex at the deceased's unit for which the deceased paid the offender. The offender and the deceased had known each other since the previous year and had regular telephone and personal contact. This was a consensual commercial arrangement. The deceased had had other such arrangements and I do not accept that his arrangement with the offender was other than consistent with his usual practice. The deceased had money to pay for sex, and was prepared to do so, with males whom he found attractive, which included the offender.

97 The deceased's close friends were aware of the relationship. The offender knew that the deceased lived alone on the third storey of a building in a unit without a balcony. That the deceased trusted the offender is evident from the offender's previous visits to the unit and the invitation which I find the deceased extended to the offender on 20 September 2009.

98 I am not satisfied beyond reasonable doubt that the offender brought the packing tape that he used to bind and gag the deceased to the deceased's unit on 20 September 2009. Nor am I satisfied on the balance of probabilities that this item was already at the deceased's unit when the offender arrived on 20 September 2009, since I consider that had the packing tape been there already, AQ would probably have noticed it. However, irrespective of whether the packing tape was in the deceased's unit or brought there by the offender, I am satisfied that the offender intended to disable the deceased in the unit on 20 September 2009.

99 The knife wounds on the deceased's body persuade me that there was a physical altercation, in the course of which the offender overpowered the deceased. I do not accept that it was the deceased who first picked up the tape. I do not accept that the deceased willingly offered his PIN to the offender. I am satisfied that the deceased divulged his PIN only as a result of threats made by the offender to him.

100 I do not accept the offender's evidence that the accused was still able to speak notwithstanding that he had been gagged with packing tape.

101 The manner of restraint was cruel and degrading. The offender was assaulted and then heavily taped around his wrists, hands, across his chest, his thighs, ankles, head and mouth. The offender went to considerable effort to disable and silence the deceased. I find that he appreciated that there was a real risk that no one would come to the deceased's aid before he died. This risk was compounded by the fact that the offender had taken the deceased's car, which postponed the realisation by the police that it was necessary to break into the deceased's unit to see whether he was inside.

102 I do not accept the offender's evidence that his stealing money from the deceased from the deceased's bank accounts was an afterthought. I find that the motive for the offence of manslaughter was financial. It was little more than two hours from the time the offender telephoned the deceased from Strawberry Hills at 1.39pm on 20 September 2009 following his arrival at Central Station, that he made the first withdrawal at an ATM at Strawberry Hills. In two withdrawals, he took the maximum daily amount from the deceased's account, and continued to do so until he was apprehended.

Sentencing - manslaughter

103 I was taken to a number of cases involving the sentencing of offenders for manslaughter. It is well recognised that of all offences, manslaughter produces the greatest variety of circumstances affecting culpability and consequently there is a substantial range in the sentences imposed for this offence: R v Lavender [2005] HCA 37; 222 CLR 67, per Gleeson CJ, McHugh, Gummow and Hayne JJ. For this reason, statistical analysis of sentences imposed for manslaughter is not helpful.

104 The fundamental touchstone for sentencing such cases is that there has been an unlawful taking of human life for which the offender has been found criminally liable and for which he must be sentenced to imprisonment. Principles of punishment, retribution and deterrence play their part and particular regard must be had to the features relevant to the seriousness of the offence and any mitigating circumstances that may exist.

Maximum penalty

105 The maximum penalty is an indication of the relative seriousness of the offence (Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31], per Gleeson CJ, Gummow, Hayne and Callinan JJ) and is therefore to be taken into account under s 21A(1)(c) of the Crimes (Sentencing Procedure) Act 1999.

106 The maximum term of imprisonment for manslaughter is 25 years: s 24 of the Crimes Act. The maximum penalty for aggravated robbery is 20 years: s 95(1) of the Crimes Act. The maximum penalty for obtaining money by deception is 5 years: s 178BA of the Crimes Act (now repealed). Offences under s 178BA are Table 1 offences under the Criminal Procedure Act 1986 and, as such, are to be dealt with summarily unless an election for trial on indictment is made. If dealt with by the Local Court, an offence under s 178BA carries with it a maximum penalty of 2 years' imprisonment. Although I have taken into account the possibility of summary disposal, it has no material effect in the instant case because the aggregation of the sentences for manslaughter and armed robbery subsume any such effect.

107 None of these offences has a standard non-parole period.

Objective seriousness

108 The offender has pleaded guilty to manslaughter on the basis that his act in binding, gagging and abandoning the deceased in circumstances where the deceased could not move freely was both unlawful and dangerous, and that a reasonable person in his position would have realised that his conduct exposed the deceased to an appreciable risk of serious injury. The Crown accepts that the offender did not intend to kill the deceased or to inflict grievous bodily harm: Wilson v R [1992] HCA 31; 174 CLR 313.

109 During the days that followed his binding and gagging the deceased, the offender took no steps whatsoever to see whether the deceased was alive, to render assistance himself or to alert others to the deceased's need for assistance. I find that his reason for failing to ring Triple-0 was neither his allegedly poor English or his lack of knowledge of the service, but his lack of humanity towards another human being whom he had exploited, and ultimately killed, for his own greed. The photographs tendered on sentence show the extent to which the deceased was bound and gagged. He acted with utter disregard to the deceased's fate. Almost a week passed before the deceased was found dead and decomposing in his unit. As I have said above, the offender's stealing the deceased's car led those who were concerned for his welfare, and who had reported his absence to police, to believe that he might be away. This delayed discovery of his body in the unit may well have contributed to his death. It also permitted the offender to obtain more money, since, as each day passed, he could access a further $1,000 from the deceased's bank accounts.

110 It would be at odds with the plea of manslaughter for me to find that the offender realised that the deceased would probably die (R v Styman; R v Taber [2004] NSWCCA 245 at [331]) and I do not make that finding. Nonetheless in my view the offender must have appreciated that there was a real risk that nobody would come to the aid of the deceased before he expired because he was incapable of freeing himself from the restraints he had put in place. The fact that the offender found himself able to access the deceased's money for many days after his illegal acts is palpable evidence of his appreciation. For the reasons already given I do not accept that the offender believed that the deceased was capable of either releasing himself or making himself heard.

111 The offences of manslaughter and aggravated robbery involved actual violence. The photographs tendered by the Crown show that the deceased was the subject of considerable violence. I have, in the reasons above, described the way in which he was bound and gagged. The photographs also show knife wounds on his body. Since the circumstances of aggravation relied upon were that the offender deprived the deceased of his liberty (by binding and gagging him), there is no element of double-counting in taking into account the actual violence involved in the commission of the offences.

112 These offences were committed in the home of the deceased who had invited the offender there. The offender had been to the deceased's home on many prior occasions. The offender grossly abused the trust that the deceased had placed in him.

Consistency

113 The offender has, through his counsel, referred me to a number of cases which exhibit similar features to the instant case in that the manslaughter was coupled with an intent to rob the victim, or to obtain financial redress from the victim, including R v Taber and Styman [2005] NSWSC 1292 (concerning Taber and Ian Styman) and R v Taber, Styman and Styman [2003] NSWSC 93 (concerning Shannon Styman).

114 The decisions specifically referred to above arose from the death of a woman of 71 years, who was found bound and gagged in her home. She was alive in that position for about nine days. She eventually died on about 16 January 2001 of smothering and dehydration. She lived alone and was found by shopkeepers who regularly delivered provisions to her house who noticed that she had failed to place her usual orders. One of the offenders had placed a Triple-0 call on 7 January 2001 but it was thought to be a hoax and not followed up. The three offenders, Ian and Shannan Styman and Taber, knew that the deceased kept large amounts of cash in the house. They planned to break in and steal her money. They stole $23,000.

115 Barr J, in R v Taber, Styman and Styman [2003] NSWSC 93, sentenced all three offenders but the convictions and sentences of Ian Styman and Taber were overturned by the Court of Criminal Appeal in R v Ian Styman; R v Taber [2004] NSWCCA 245 which led to a retrial before Studdert J of Ian Styman and Taber. Shannon Styman did not appeal against his sentence of fourteen years imprisonment for manslaughter with a non-parole period of nine years and eight years imprisonment for aggravated robbery. There was partial accumulation of sentences in that the sentence for aggravated robbery was taken to have commenced on 26 March 2001 and the sentence for manslaughter commenced on 26 March 2002.

116 Studdert J, in R v Taber and Styman [2005] NSWSC 1292, sentenced Ian Styman and Taber to ten years for the aggravated robbery and to eighteen years with a thirteen year six month non-parole period for manslaughter. The sentences in Taber and Styman provide guidance and stand as a yardstick against which a proposed sentence in the instant case can be measured.

117 Although I have found that the offences were planned, I accept the offender's submission that none of the offences was part of a planned or organised criminal activity within the meaning of s 21A(3)(b) of the Crimes (Sentencing Procedure) Act 1999. I therefore take this matter into account.

118 I reject the offender's submission that he was provoked by the deceased since I am not satisfied, for the reasons given above, that there was any such provocation.

Subjective features

119 The evidence before me as to the offender's personal circumstances comprises criminal and custodial history print-outs, a report by Dr Olav Nielssen, a psychiatrist, and a number of testimonials from the offender's paternal aunt, Hong Zhang, his high school principal, Shen Miezi, his grandmother, Zhang Yimian, one of his high school teachers, Yu Hong, and his parents, Li Ke and Lei Heng.

120 The offender was born on 31 October 1987 in Hengyang, a city of about seven million people, in Hunan province in China. He grew up with his parents. His father teaches medicine at a university and his mother is a midwife. He has a younger brother, who is 12 years old. The offender was almost blind in his right eye from birth and has poor vision through his left. After the offender completed high school in China, he studied English for a year before coming to Australia on a student visa.

121 His parents deposed to his eye problems which resulted in his being blind in the right eye and his left eye being compromised. According to his parents the offender suffered from depression when he was 15, at the same time as he had had an eye operation as a result of which he became totally blind in his right eye. They immediately sent him to a psychiatrist. His condition was brought under control with treatment and, at least by the time he travelled to Australia, his parents regarded his depression as "basically cured".

122 In their testimonial, the offender's parents expressed their support for their son and their deep regret at what their son had done. They apologised to the victim's family and friends. In her testimonial, the offender's grandmother described the offender's regret, his repentance and rehabilitation.

123 The offender had no previous criminal record.

Character

124 I am not satisfied that the offender was a person of good character. The people referred to above who wrote in favour are likely, because of their relationship with the offender, to be partial to him. None was well acquainted with his daily life since he had come to Sydney. In making this assessment I am obliged to set aside the offences for which the offender is being sentenced, and I do so.

Pre-Sentence custody

125 It is agreed that the offender's sentence should be backdated to 26 September 2009 in order to take into account the period in which he has been in custody already.

Remorse

126 Although there are passages in the offender's evidence which, taken alone, could be regarded as amounting to contrition, I am not obliged to accept his assertions of contrition or remorse (R v Stafrace (1997) 96 A Crim R 452, per Hunt CJ at CL, followed in R v Nguyen [2004] NSWCCA 438 at [21]) and I do not.

127 I am not satisfied that the offender has shown any real remorse for any of the offences for which he is to be sentenced. Indeed, the offender's evidence demonstrated that he has not come to terms with what he has done and is not prepared to accept responsibility for his actions. His persistent portrayal of himself as victim, as set out above, is antithetical to any contrition or remorse. For him to proffer the excuse at the sentence hearing that he was busy with classes for his failure to concern himself with the deceased's welfare after he had left him bound and gagged is indicative of his lack of remorse.

Rehabilitation prospects and likelihood of re-offending

128 It was submitted that the offender has good prospects of rehabilitation and is unlikely to re-offend. Future behaviour is notoriously difficult to predict. However, the offender has the support of his family, including his paternal aunt who lives in Australia. He has no history of alcohol or drug use and has no prior criminal record. Each of these matters supports the submission. However his lack of true remorse and his tendency to justify his actions are to the contrary. In these circumstances, I conclude that the prospects of rehabilitation and not re-offending are reasonable.

Willingness to plead guilty

129 The offender pleaded guilty to manslaughter and aggravated robbery after a committal hearing. He offered a plea of guilty to manslaughter prior to the committal hearing at a time when the forensic pathologist could not identify a cause of death. He pleaded guilty to counts 3-10 (obtain money by deception) in advance of the Crown's acceptance of his offer to plead guilty to manslaughter.

130 The Crown tendered a Criminal Case Outcome Certificate dated 7 February 2012 and filed on that day. A conference was held pursuant to s 6 of the Criminal Case Conferencing Trial Act 2008 (the CCCT Act) on 14 October 2010 at the Local Court at which the offender offered to plead guilty to obtaining money by deception and manslaughter by unlawful and dangerous act. The certificate was required to be filed at the conclusion of the conference. The Crown submitted that nothing turned on the delay in the filing of the certificate and that the facts recorded in the certificate constituted "substantial grounds" within the meaning of s 17(5)(b) of the CCCT Act. I accept this submission. I am entitled, pursuant to s 17(4) of the CCCT Act to allow a discount greater than 12.5% but not greater than 25%.

131 The Crown submitted that it would be appropriate to reduce the offender's sentence by 25% pursuant to s 17(4) of the CCCT Act. I accept this submission and have discounted the offender's sentence accordingly.

Nature and relationship of the sentences

132 I propose to accumulate the sentence for the manslaughter upon the sentence for the aggravated robbery and obtaining money for deception in order to recognise that they are distinct sentences. However, because they were committed in a similar context and within a fairly short period of time, the degree of accumulation will not be substantial.

133 I note that it is important not to punish the offender twice for elements that may be regarded as common to both offences for which sentences are to be imposed. The fact of the death of the deceased is only to be brought to account in the punishment of the offender for the crime of manslaughter. The taking of the money of the deceased is to be brought to account only in punishing the offender for the crime of aggravated robbery. To avoid punishing the offender twice for common elements of both crimes, I shall impose sentences which are substantially, but not completely, concurrent.

134 I will impose a fixed term of imprisonment for the offences of aggravated robbery and obtaining money by deception as there will be no utility in setting a non-parole period, having regard to the greater length of the sentence imposed for manslaughter and the partial aggregation. I will be imposing a sentence that reflects the total term appropriate for those offences.

Special circumstances

135 The offender submitted that there are special circumstances justifying the reduction of the non-parole period and relies on his age, his medical condition and migration status in combination. The Crown submitted that there are no special circumstances.

136 The offender, who was 22 at the time of the offences, is now 24. The time he has spent, and will spend, in prison coincides with the prime of his life.

137 The offender also relied on a report of Dr Nielssen to support his submission that he was suffering from a mental condition, as a result of which his incarceration will be more onerous than for others.

138 Dr Nielssen diagnosed the offender as suffering from depressive illness in remission and probable underlying psychotic illness in remission. His opinions are based on a history that I do not wholly accept. The offender told Dr Nielssen that he had experienced psychiatric problems since his teens. I accept that the offender suffered depression in his mid-teens as a result of the failure of surgery to correct his eye problem.

139 The offender told Dr Nielssen that he was paranoid and hearing voices while in Australia after the deceased had drugged him but prior to the commission of the offences. As is apparent from the reasons set out above, I do not accept that the deceased did drug the offender or that he at any time blackmailed him.

140 Dr Nielssen noted that the offender first received treatment in prison and was taking high doses of an anti-psychotic drug, Zyprexa, and an antidepressant, Efexor, when he saw Dr Nielssen in September 2011. Neither of these matters establish, in my view, that the offender is presently suffering from a mental illness or that he suffers from a mental illness which is in remission. I decline to find special circumstances on that basis.

141 The offender submitted that, as a Chinese national who is in Australia on a study visa, he would be deported at the conclusion of his sentence. His family, apart from an aunt who visits him in prison infrequently, lives in China. He submitted that his experience of custody will necessarily be harsher and that the impact on his mental health of those factors constitutes special circumstances.

142 I do not accept that the offender will necessarily be deported at the conclusion of his sentence. Whether or not he is deported is a matter for the Commonwealth and the offender's circumstances might change during his sentence which may make his deportation more or less likely. However, in any event, the fact of actual or potential deportation is irrelevant to the sentencing exercise and it would be an error for me to use deportation to determine any aspect of the sentence. As was said by Wood CJ at CL, Hislop and Johnson JJ agreeing, in R v Pham [2005] NSWCCA 94 at [13]:

"It is established principle that the fact of deportation is irrelevant as a sentencing consideration, it being a matter exclusively for the Executive Government: R v Jap NSWCCA 20 July 1998 and R v Latumetan and Murwanto [2003] NSWCCA 70. Moreover the High Court has held that a foreign national should receive the benefit of being eligible for release on parole: Shrestha v The Queen (1991) 173 CLR 48 at 71 per Deane, Dawson and Toohey JJ."

143 Accordingly, I disregard any prospect of the offender's being deported.

144 Although the offender's age and lack of family in the jurisdiction could constitute special circumstances, I do not consider it to be appropriate to alter the orthodox ratio between the overall sentence and the non-parole period in the instant case and I am not disposed to do so.

145 Under the law, the loss suffered by the deceased and his loved ones cannot be replicated by any sentence I impose. However, before I impose a sentence, I wish to pause to acknowledge the loss of Mr Craigie to his sister, his friends, his colleagues and his students at Saint Ignatius College, Riverview. I take this opportunity to extend my personal sympathies to them.

Sentence

146 Obtaining money by deception: Sentenced to a fixed term of imprisonment for 1 year. The sentence is to date from 26 September 2009 and expire on 25 September 2010.

Aggravated robbery: Sentenced to a fixed term of imprisonment for 6 years. The sentence is to date from 26 March 2010 and expire on 25 March 2016.

Manslaughter: Sentenced to a term of imprisonment comprising a non-parole period of 7 years and a balance of the term of the sentence of 3.5 years. The sentence is to date from 26 March 2011. The offender will be eligible for release on parole upon the expiration of the non-parole period on 25 March 2018. The total term will expire on 25 September 2021.

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Amendments

12 June 2012 - Line 2 the word "deceased" changed to "offender"
Amended paragraphs: Paragraph 61

Decision last updated: 12 June 2012